Judge: Luke Pelham must be deemed competent before hearing can be held

By Mitchell Byars, Camera Staff Writer

Posted:
09/04/2014 02:33:14 PM MDT

Luke Pelham, right, talks with his attorneys Benjamin Collett, left, and Luke McConnell after a hearing at the Boulder County Justice Center on Thursday. (Cliff Grassmick / Daily Camera)

Aaron Tuneberg (Courtesy photo)

A Boulder judge refused to hear arguments Thursday from prosecutors seeking to revoke bond for Luke Pelham — a suspect in the murder of Aaron Tuneberg — until Pelham is deemed competent to stand trial.

Prosecutors asked Boulder District Judge Patrick Butler for a hearing to determine whether Pelham, 18, could be held in jail without bond while he awaits further competency testing at the state mental-health hospital in Pueblo.

Pelham currently is free on $200,000 bond.

While Butler previously ruled that a preliminary hearing could move forward despite concerns about Pelham's competency and ability to assist in his own defense, the judge said Thursday that a hearing to revoke Pelham's bond required a greater level of proof by the prosecution and also dealt with Pelham's "liberty interests."

"The concern I have the most is the argument that going forward with the 'proof evident' hearing would effectively deny Mr. Pelham of his constitutional rights," Butler said. "I just don't think we can do it today."

Butler said as soon as Pelham was ruled competent enough to proceed, he would hold the hearing on prosecutors' request to revoke bond.

Pelham, who is charged with first-degree felony murder, second-degree murder with a deadly weapon, first-degree assault on an at-risk victim, aggravated robbery and first-degree burglary, is due back in court for a competency hearing on Nov. 24.

"Judge Butler did the right and brave thing in not allowing a 'proof evident and presumption great' hearing to go forward, which would have violated our intellectually disabled client's constitutional rights," said Luke McConnell, one of Pelham's attorneys.

Last month, psychologist Janice Ort found Pelham incompetent to stand trial in the fatal beating of the mentally disabled Tuneberg at his Boulder apartment earlier this year.

But according to Ort's report to the court, the doctor felt Pelham's "participation in the evaluation was suspect," and felt he was "not giving good effort and was possibly feigning memory impairment."

At an Aug. 20 hearing, Butler ordered Pelham to report to the Mental Health Institute at Pueblo by the end of that week for further evaluation.

But the state hospital said it did not have bed space for Pelham, and prosecutor Sean Finn said it could take up to six weeks to get Pelham into the hospital.

Finn had asked Butler at the August hearing to raise Pelham's bond, saying that the report's finding that Pelham was either incompetent or trying to deceive doctors meant he could be a risk to the community.

Austin Holford (Boulder County Sheriff's Office)

"I did not like the two options," Finn told Butler on Thursday.

Finn added that investigators saw an Instagram photo posted by Pelham's girlfriend in California in which she said Pelham "will be home."

"We have cause for concern," Finn said.

But Benjamin Collett, another one of Pelham's attorneys, said his client had been present at all his court hearings and has been compliant with his bond conditions.

"Bond is not set as punishment, it is set for the purposes of ensuring the defendant shows up for court and for the purposes of public safety," Collett said. "He has been on bond, has been cooperative with the conditions of the bond, and has not been putting anyone at risk for over four months."

Pelham and Austin Holford, 18, are accused of beating Tuneberg at his apartment in the 5600 block of Arapahoe Avenue on March 31 while trying to steal his Xbox video game console.

Tuneberg, 30, died of his injuries a week after the assault.

Holford — who is being held without bond — is set for a five-day trial starting March 16 after pleading not guilty to first-degree felony murder, second-degree murder with a deadly weapon, first-degree assault on an at-risk victim, aggravated robbery and first-degree burglary.

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